Al-Haq: A Foundation not an Afterthought: Upholding International Law at Annapolis

As Palestinian human rights and civil society organisations, we the undersigned, are deeply concerned by the lack of a clearly articulated legal framework for the upcoming diplomatic negotiations between Israel and the Palestinian National Authority (PNA) to be held at Annapolis on 27 November. While the process of negotiation is inherently political, the legitimate demands of the Palestinian people to dignity, territorial sovereignty and self-determination as enshrined in binding international law may not be made the subjects of negotiation.

Following 40 years of occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and numerous rounds of failed diplomatic initiatives, international law must at last be understood to be the essential over-arching framework for negotiations. International law not only provides a means of dispassionately assessing Israel’s existing policies and practices in the Occupied Palestinian Territory (OPT), but also limits the discretion of the negotiating parties, and their sponsors, in deciding certain fundamental issues. Under the terms of Article 4 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 (the Fourth Geneva Convention), the Palestinian civilian population of the OPT are “protected persons.” By virtue of this status, they are entitled to certain protections that may not be undermined or disregarded in political agreements. This is clearly set forth in Article 47 of the Fourth Geneva Convention, which establishes:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

This provision seeks to address the obvious imbalance of power between the occupied and the occupier in any negotiation process. It recognises that an Occupying Power can, by virtue of its occupation, seek to legally validate through “negotiation” the unilateral imposition of facts on the ground that violate international humanitarian law and harm the civilian population. As noted by the International Committee of the Red Cross (ICRC) in its authoritative commentary to the Fourth Geneva Convention, there is in the case of occupation, “a particularly great danger of the Occupying Power forcing the Power whose territory is occupied to conclude agreements prejudicial to protected persons.” This danger is clearly present in the context of the current negotiations, and is most obvious in relation to Israel’s settlement policy.

Throughout the 40 years of the occupation, Israel has used its effective control over the OPT to implant some 149 settlements, currently home to over 470,000 settlers, which control over 40% of the West Bank, including essential agricultural and water resources. The current planned route of the Wall will incorporate some 69 settlements, home to 83% of the settler population, on 12.8% of the West Bank, including East Jerusalem, that will remain on the western side of the Wall. Under Article 49(6) of the Fourth Geneva Convention, an Occupying Power is prohibited from transferring parts of its civilian population into occupied territory. Israeli settlements in the OPT are in flagrant violation of this prohibition. Further, the construction and expansion of settlements, and their associated infrastructure, requires the extensive appropriation and destruction of property, and severe movement restrictions which are further violations of international humanitarian law and human rights law.

In March 2006 Israel’s Prime Minister Ehud Olmert stated his intention to make the Wall the new border of the State of Israel, incorporating settlements in the OPT and annexing Palestinian land. To accept Israel’s retention of the settlement blocs as part of a negotiated solution clearly deprives the Palestinian civilian population of the benefits of the Fourth Geneva Convention, as it would validate Israel’s violations thereof. As such any agreement recognising the settlements is in flagrant violation of Article 47.

In the event that negotiations were to lead to recognition of Israeli settlements in the OPT as part of the State of Israel, this would amount to the endorsement of the acquisition of territory by force. The illegality of the acquisition of territory by force is a norm accepted and recognised by the international community as a peremptory norm of international law — a norm from which no derogation is permitted.

The right of all peoples to self-determination is also considered a peremptory norm of international law. The retention of settlements and their associated infrastructure by Israel would not only amount to the illegal annexation of territory, but would also fragment the West Bank, including East Jerusalem, into isolated geographical units. This would severely undermine the meaningful exercise by the Palestinian people of their inalienable right to self-determination by limiting the possibility of a contiguous territory and the ability to freely dispose of natural resources, both of which are required for the meaningful exercise of this right.

Under Article 53 of the Vienna Convention on the Laws of Treaties, “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” This therefore casts severe doubt on whether a negotiated solution that accepts Israel’s retention of settlements and de facto annexation of territory would be valid under international law.

Other State parties accessory to the negotiations are also obliged to duly consider their international law obligations in relation to these negotiations. Under common Article 1 of the Geneva Conventions, the High Contracting Parties “undertake to respect and to ensure respect for the present Convention in all circumstances.” As specified by both the ICRC and the International Court of Justice (ICJ), this provision entails an obligation on all State parties, whether or not they are a party to the specific conflict, to take all possible steps to ensure that the provisions of the Convention are respected. In respect of the current negotiations, it is important to note that the ICJ, in its Advisory Opinion on the Wall, found all States to be under “an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in [the Fourth Geneva] convention.” Similarly, and as also noted by the ICJ, under customary international law all States have the duty not to recognise or to assist in the creation or maintenance of illegal situations. Such illegal situations would clearly include the acquisition of territory by force, the denial of the right to self-determination and the construction of settlements in occupied territory.

To date, all diplomatic initiatives have ignored international law as the essential foundation of any solution to Israel’s occupation of the OPT, thereby allowing for the proliferation of violations. To cite but a few examples, in spite of former negotiations, Palestinians saw, inter alia, the imposition of draconian movement restrictions and unrestrained settlement construction and expansion, during the Oslo Process. Similarly, since the “Road Map” was initiated in 2002, Palestinians have seen the further entrenchment and expansion of settlements and the unilateral creation of a de facto border between Israel and the would-be Palestinian state through the building of the Wall.

Most recently, on 19 September 2007, Israel declared the Gaza Strip an “enemy entity,” and began the imposition of further sanctions on the already beleaguered Palestinian civilian population therein. Having no basis in international law, the designation of the Gaza Strip as an “enemy entity” represents a clear effort by the Israel, the Occupying Power, to negate its responsibility for the welfare of the civilian population of the Gaza Strip under the terms of Fourth Geneva Convention. The sanctions, which further exacerbate an already dire humanitarian situation, further amount to unlawful reprisals and the collective punishment of the civilian population of the Gaza Strip.

In this context, we urge the parties to approach the upcoming negotiations with a renewed sense of purpose, giving due recognition of the international legal obligations incumbent upon them, including UN Security Council and General Assembly resolutions addressing Palestinian refugees. The task which they face is a heavy one, as any final agreement must reflect a commitment to the principles of international law, justice in addressing wrongful acts, and respect for human rights. The fundamental rights of the Palestinian people are matters of binding international law, not political bargaining chips. Their implementation must not be left to Israel’s beneficence, but rather established as the foundation of any just and durable solution to the conflict.